PRINCE SUNDAY BAMIDELE ADERONMU & ANOR v. INDEPENDENT NATIONAL ELECTORAL COMMISSION & ORS (2011)

PRINCE SUNDAY BAMIDELE ADERONMU & ANOR v. INDEPENDENT NATIONAL ELECTORAL COMMISSION & ORS

(2011)LCN/5013(CA)

In The Court of Appeal of Nigeria

On Wednesday, the 14th day of December, 2011

CA/L/EPT/08/2011

RATIO

STANDARD OF PROOF: POSITION OF THE LAW ON THE STANDARD OF PROOF REQUIRED WHERE THE COMMISSION OF A CRIME BY A PARTY TO ANY PROCEEDING IS DIRECTLY IN ISSUE WHETHER IN CIVIL OR CRIMINAL MATTER

Allegation of crime can ground a civil claim, but the allegation must meet the standard of proof in criminal cases; that is proof beyond reasonable doubt. The Supreme Court held in the case of MICHAEL AROWOLOE V. CHIEF TITUS IFABIYI (2002) 4 NWLR Pt.757 Pg. 356 at 380 PER IGUH JSC as follows: ”Without doubt, preponderance of evidence or the balance of probabilities constitutes sufficient ground for a verdict in civil cases. This general rule is however subject to the statutory provision in section 137 (1) now section 138 (1) of the Evidence Act to the effect that if the commission of a crime by a party to any proceeding is directly in issue in any proceeding, civil or criminal, it must be proved beyond reasonable doubt.” See also BUHARI V. OBASANJO (2003) 17 NWLR Pt. 850 Pg.587; OLUFUNMISE V. FALANA (1990) 3 NWLR Pt.757 Pg.356 at Pg. 380. PER HELEN MORONKEJI OGUNWUMIJU, J.C.A.

GROUND OF ELECTION PETITION: GROUND UPON WHICH AN ELECTION PETITION CAN BE BROUGHT

Under section 66 (1) of the 1999 Constitution and section 138 (1) of the Electoral Act 2010, an election petition can be brought on the ground that the person elected at an election was at the time of the election disqualified or not qualified to have stood for the election. See ONWE AGBAKOGBA V. INEC, SENATOR UCHA V. DR. ONWO (2011) 1 – 2 SC pt. 193 at 100 and 100. PER MOHAMMED AMBI-USI DANJUMA, J.C.A

JURISDICTION OF ELECTION PETITION: WHETHER AN ELECTION TRIBUNAL HAS JURISDICTION TO DETERMINE AN ISSUE OF DISQUALIFICATION OF A CANDIDATE THAT AROSE FROM THE DOMESTIC NOMINATION EXERCISE OF HIS POLITICAL PARTY

It is clear that when the issue of disqualification is based on or arose from the domestic nomination exercise of his political party, it is clearly a pre election matter over which the Tribunal had no jurisdiction. PER MOHAMMED AMBI-USI DANJUMA, J.C.A

SUBSTANTIAL JUSTICE: DUTY OF THE COURT TO DO SUBSTANTIAL JUSTICE AND NOT TECHNICAL JUSTICE

In the case of SYLVESTER OGBOMOR v. THE STATE (1985) 1 NSCC 224 at 239, the Supreme Court per Aniagulu, JSC emphasized the ultimate aim of the law at doing substantial justice as opposed to technical Justice when he said:- ”The dictates of justice which command that the guilty be punished and the innocent set free after a fair hearing under procedural regularity do not permit the acquittal of an otherwise guilty person upon fanciful errors contained in the charge. The law always aims at substantial justice.” In STATE v. SALIHU MOHAMMED GWENTO & ORS. (1983) NSCC 104 at 119, ESO JSC also state the principle thus:-
”It would amount to travesty of Justice to allow the judgment of the court of Appeal to stand. This court has for some time now laid down as a guiding principle that it is more interested in substance than mere form. Justice can only be done if the substance of the matter is examined. Reliance on technicalities read to injustice.” In BATURE V. STATE (1994) in NWLR 267 at 282 the SC per Onu JSC emphasized: ”Rather, what I mean is that mere technicalities (as opposed to substantial justice upon which the law looks with seriousness) as depicted in the instant case ought not to be allowed to defeat the ends of justice.” Tabai JSC in STATE V. SALAWU 2011 6 – 7 SC (part iv) 14 at 184 stated thus ”Regrettably, the court below did not feel bound by the above principle of doing substantial justice. Rather, it chose to adopt the path to technical justice and inflicted thereby the injustice complained of. As I already indicated above, there is merit in this appeal…” The Appellant’s counsel had also submitted that the words of the Constitution as provided in section 66(1) of the 1999 Constitution and section 138(1) of the electoral Act 2010, on disqualification constitutes a clear ground for election petition and should be interpreted liberally and not in such a way as to nullify or stultify its intent and purpose or defeat its aim and objective. A.G. BENDEL STATE v. ATTORNEY GENERAL FEDERATION (1981) 9 SC reprint 1 at 78 – 79 referred. I agree entirely with the learned counsel for the Appellants when he submitted that the legislative intent will be defeated were this court to hold that the mere reliance on disqualifying factors such as non possession of certificates or the, possession of forged certificates will necessarily turn complaint to a pre election matter, BS it will be contrary to the principle, of giving a sensible meaning to legislative words, and would lead to absurdity. The legislature does not intend absurdity – i.e. lex non cogit ad absurdum. A decision based on a technical approach as done at the trial Tribunal is no doubt erroneous in law as it prevented the Appellant’s petition from being heard on its merit. PER MOHAMMED AMBI-USI DANJUMA, J.C.A

JUSTICES:

HELEN MORONKEJI OGUNWUMIJU Justice of The Court of Appeal of Nigeria

RITA NOSAKHARE PEMU Justice of The Court of Appeal of Nigeria

MOHAMMED DANJUMA Justice of The Court of Appeal of Nigeria

Between

1. PRINCE SUNDAY BAMIDELE ADERONMU
2. LABOUR PARTY – Appellant(s)

AND

1. INDEPENDENT NATIONAL ELECTORAL COMMISSION
2. KAZEEM ALIU BABATUNDE
3. ACTION CONGRESS OF NIGERIA (ACN) – Respondent(s)

HELEN MORONKEJI OGUNWUMIJU, J.C.A. (Delivering the Leading Judgment): This is an appeal against the decision of the National Assembly Election Tribunal Lagos, delivered on 17/10/11, striking out the Appellants’petition on two grounds:
1. That the Pre-hearing session was not properly initiated in the case as required by the 1st Schedule to the Electoral Act 2010
2. That the Appellants’ petition was in respect of a pre-election dispute in respect of which the Tribunal lacks jurisdiction.
The Appellants appealed against the order striking out the Petition.
Issues were joined in this court and briefs were filed. At the hearing of the appeal, both counsel agreed on the 2 issues for determination. The Respondents’ counsel conceded the issue of improper initiation of pre-hearing session. In view of that, arguments were not taken on that issue and due to the concession of Respondents’ counsel and the state of the decision law as handed over by the Supreme Court that issue is resolved in favour of the Appellant. Thus, it is resolved that the Tribunal was wrong to hold that the prehearing session was not properly initiated.
Both counsel conceded that the sole issue remaining for determination is whether the issue raised by the Petition was in fact a post election dispute and the Tribunal was wrong to have adjudged same to be a pre-election dispute and by such reason declined jurisdiction.
On this issue, the learned Appellants’ counsel, Ademola A. Adewale, Adewole A. Adeleke, Raymond A. Olaiya and Ikechukwu E. Ozobodo contended that the fact that the 2nd Respondent presented forged educational certificate to contest in the election was a post-election matter and as such the Tribunal has jurisdiction to entertain the petition.
The counsel alleged that the Appellant only came to know of the fact of disqualification after the conduct of the April 2011 elections. They stated that under Section 65 (1) of the 1999 Constitution and Section 138 (1) of the Electoral Act 2010, an election petition can be brought on the ground that the person elected at an election was at the time of the election disqualified or not qualified to have stood for the election. He argued that this is more so if the fact of disqualification arose or emerged after the election in contradistinction to where the fact of disqualification was known to the Petitioner before the election or the fact of disqualification or non disqualification emerged from a domestic dispute within a party on issues such as nomination, substitution of a candidate and so on. He cited the following cases among others: SENATOR UCHA V. DR. ONWE (2011) 1-2 SC. Pt. 1 Pg. 93 at 100 & 144; AGBAKOBA V. INEC (2008) 12 sc. Pt. III Pg. 171; HASSAN v. ALIYU (2010) 7-12 SC. 21.
He finally argued that since the 2nd Respondent was at the time of the election disqualified from contesting and the dispute had nothing to do with the nomination or substitution of a candidate before election or intra-party matters, the dispute was clearly a post election dispute and the Tribunal was wrong to have held that it was a pre-election matter.
On their part, counsel to the 2nd and 3rd Respondents, Dr. Muiz Banire and Bayo Badmus argued that the Tribunal was right in dismissing the Appellants’ petition on the ground that the petition deals with a pre-election matter, on which it has no jurisdiction.
They argued that while the Tribunal can pronounce on the qualification or otherwise of a candidate to contest election, where the ground for such disqualification is based on criminal allegations; the Tribunal cannot pronounce on the guilt of the candidate without a prior determination of such issue by a court which has jurisdiction to try criminal offences. They further argued that the crux of the Appellants’ petition is the allegations of forgery and perjury and the Tribunal has absolutely no jurisdiction to try such offences.
Futhermore, they submitted that by section 3 (5) & (6) of the Electoral Act 2010, the Tribunal cannot try criminal offences and as such, before the Tribunal can pronounce on the disqualification of a candidate based on a criminal offence, there must have been a prior conviction by a court of competent jurisdiction.
They also argued that the disqualifying factors listed in section 66 of the 1999 constitution as amended precede the election and as such are pre-election matters which cannot be entertained by the Election Tribunal. He cited KOLAWOLE V. FOLUSO (2009) 8 NWLR Pt. 1143 Pg.338 AT 387; OMOWORARE V. OMISORE (2010) 3 NWLR Pt. 1180 Pg. 58 AT 111.
They also contended that the case of AGBAKOBA V. INEC (2008) 18 NWLR pt, 1119 pg. 488, cited by the Appellants does not apply here because it was decided under the old regime. The further contended that assuming the case applies, it was held PER CHUKUMA-ENEH JSC AT pg. 544 that any dispute resulting from the conduct of an election is not a pre-election dispute but a post election dispute. They submitted that this means that any matter that will properly come before the Tribunal must inevitably and clearly have arisen from the conduct of the election and that the allegations of forgery and perjury preceded the election. He cited JANG V. DARIYE (2003) 15 NWLR Pt. 843 Pg.436 at 460.
They referred the court to the recent decision of the Supreme Court in PDP V. ONWE (2011) 4 NWLR Pt. 1236 Pg. 165 at 173 PER TABAI, JSC, where it was held that where it is a pre-election matter, only the Federal High Court or the State High Court has jurisdiction.
They finally concluded that the proper court to entertain the Appellants’ complaint is either the High Court of a State or the Federal High Court and not an Election Tribunal.
There is no doubt that the issue of presenting a forged certificate as alleged in the ground of the Appellants’ petition is a constitutional issue. Section 66 (1) of the 1999 Constitution Provides:
”No person shall be qualified for election to the Senate or the House of Representatives if:
(i) he has presented a forged certificate to the Independent National Electoral Commission.”
The provision of Section 138 (1) of the Electoral Act as amended provides thus:
”An election may be questioned on any of the following grounds, that is to say;
(a) That the person whose election is questioned was at the time of the election not qualified to contest the election.”
The main thrust of the 2nd and 3rd Respondents’ argument is that forgery, being a criminal offence must be proved before the High Court with the jurisdiction to try criminal offences.
I beg to differ. Allegation of crime can ground a civil claim, but the allegation must meet the standard of proof in criminal cases; that is proof beyond reasonable doubt. The Supreme Court held in the case of MICHAEL AROWOLOE V. CHIEF TITUS IFABIYI (2002) 4 NWLR Pt.757 Pg. 356 at 380 PER IGUH JSC as follows:
”Without doubt, preponderance of evidence or the balance of probabilities constitutes sufficient ground for a verdict in civil cases. This general rule is however subject to the statutory provision in section 137 (1) now section 138 (1) of the Evidence Act to the effect that if the commission of a crime by a party to any proceeding is directly in issue in any proceeding, civil or criminal, it must be proved beyond reasonable doubt.”
See also BUHARI V. OBASANJO (2003) 17 NWLR Pt. 850 Pg.587; OLUFUNMISE V. FALANA (1990) 3 NWLR Pt.757 Pg.356 at Pg. 380.
There is no merit in the argument that the Tribunal cannot try the allegation of forgery, the only requirement is that even though election petitions are sui generis, the proof of allegation of crime must be beyond reasonable doubt.
The intendment of the constitution with the combined reading of the Electoral Act is that such a matter can be subjected to the adjudicatory powers of the Tribunal. After reading the briefs of and considering the oral submissions of counsel, I am of the firm view that the Tribunal has jurisdiction to entertain the issue of whether or not the 2nd Respondent was barred from contesting the election by reason of Constitutional disqualification.
Futhermore, the Tribunal had in its Ruling dismissed the petition on the ground that the Appellants’ petition was in respect of a pre-election dispute in respect of which the Tribunal lacks jurisdiction. I agree that the Tribunal lacks jurisdiction to entertain pre-election matters when they have to do with violations of the provisions of the Electoral Act and other regulatory laws. However, this is not to say that inherent non-qualification of a candidate who did not meet the qualifications stipulated in the Constitution cannot be questioned before an Election Tribunal. Thus, in SAIDU V. ABUBAKAR (2008) 12 NWLR pt. 1100 pg. 201 at 255, the Court of Appeal held that the petitioner can only succeed in a complaint founded on section 145 (1) (a) of the Electoral Act if he alleges facts amounting to a constitutional bar and does not include failure to comply with the provisions of sundry sections of the Electoral Act.
Moreover, this issue has been settled by the brief opinion of the Supreme Court delivered on the 28tn day of November, 2011 in consolidated suit No. SC. 381/2011 and Sc.283/2011 in SUSWAN V. SAROR wherein Dahiru Musdapher CJN held as follows:
”In my view, there is no dispute whatsoever that the Tribunal can deal with the issue of the disqualification of a candidate to contest the particular election and it does not matter whether the impediment is constitutional or otherwise.”
It is my view that the Tribunal has jurisdiction to try a case of constitutional disqualification. Whether the Appellant can prove the ground of the petition is another matter entirely.
I have deliberately refrained from making any reference to the arguments contained in the 1st Respondent’s brief settled by M.O. Tairu (Mrs.).
This is because the arguments, with the greatest respect made no sense to me.
They were completely incomprehensible given the facts in issue n this case.
The points argued do not emanate from the grounds of appeal or issues distilled therefrom, by the principal combatants.
In any event, the appeal is allowed. The decision of the Tribunal is set aside. The matter is remitted to the Tribunal to be decided on the merit. I make no order as to costs.

RITA NOSAKHARE PEMU, J.C.A.: I had the privilege of reading in draft the lead Judgment of my brother Judge, Justice H.M. Ogunwumiju JCA, and I agree entirely with her reasoning and conclusion that the appeal be allowed. I subscribe to the consequential order made that the decision of the National Assembly Election Tribunal, Lagos delivered on 17/10/11, striking out the Appellant’s petition be set aside and same is hereby set aside.
The matter shall be, and is hereby remitted to the Tribunal for determination on its merit. There shall be no order as to costs.

MOHAMMED AMBI-USI DANJUMA, J.C.A.: This appeal is against the decision of the National Assembly Election Petitions Tribunal (Coram – Hon. Justice Maurice Eneji (Chairman), Justice Ahman Abbas – Member, Justice Musa Bazza – Member) Lagos delivered on 17th day of October 2011, striking out the Appellant’s petition in petition No. NA/LEGH/EPT/8/2011 on the ground that the pre hearing session was not properly initiated in the case as required by the 1st Schedule to the Electoral Act 2010 as amended as the application was by a motion exparte.
(II) that the Appellant’s petition was in respect of a pre election dispute in respect of which the aforesaid Tribunal lacks jurisdiction. The Appellants, dissatisfied with the said decision has appealed against it upon a 14 ground Notice of appeal dated 24th November, 2011. The brief statement of the facts leading to the petition at the trial court is that the Appellant had stood for election into the Surulere 2 Federal Constituency of the House of Representatives with the 2nd Respondent who was a candidate of the 3rd Respondent, the Action Congress of Nigeria (ACN). The Appellant who was the candidate of the 2nd Respondent, the Labour Party was not in disapproval with the conduct and result of the election as conducted and declared by the 1st Respondent, the Independent National Electoral commission. The Appellant’s grouse, however, is that the 2nd Respondent here was not qualified to stand for the said election as he was disqualified for the elections for sundry reasons indicated in the particulars of disqualification annunciated and set out the particulars of the Grounds of disqualification. Those particulars relate to (i) the presentation of forged educational certificates to the 1st Respondent, (ii) conviction severally for various offences in the united states while sojourning thereat.
(iii) lying on oath by not declaring the above disqualifying facts while signing INEC forms CF001 and EC40, prepared by the 1st Respondent as nomination forms. On the 3rd of May 2011, the Appellant amended his petition by motion granted to that effect, the ground for the petition however remained intact as it were. See pages 140 145 of the record of Appeal wherein is contained the Amended petition.
The ground of the petition is as stated at paragraph 9 of the petition thus:-
”9. The petitioner hereto hereby pray the honourable Tribunal to nullify the aforesaid election of the 2nd Respondent and his declaration as winner by the 1st Respondent upon the following grounds:-
GROUND UPON WHICH THE PETITION IS BROUGHT
The petitioners aver that at the time the 2nd Respondent stood for the aforesaid erection on the platform of the 3rd Respondent, the 2nd Respondent was not qualified to be a candidate for election into the office of member of the Federal House of Representative of the Federal Republic of Nigeria.”
Particulars of the 2nd Respondent’s disqualification and also of alleged forgery are thereafter set out, along side particulars of conviction, imprisonment, lying on oath (perjury) and presentation of forged and fake documents. (Uttering)
Amongst the Nine reliefs sought at the Tribunal are as relevant to the ground for the petition a declaration that the 2nd Respondent Kazeem Alliu Babatunde was not duly returned as the winner of the election into Surulere 2 Federal Constituency, Lagos State of the Federal House of Representatives election held on 9th of April, 2011 by reason of being not qualified to stand for the said election as a candidate by virtue of the constitution of the Federal Republic of Nigeria 1999 as amended and the Electoral Act, 2011 as amended and other relevant laws.
1.2. A declaration that the 2nd Respondent at the time of the aforesaid election did not possess a valid School Laving Certificate to stand as a candidate at the election.
I see reliefs 1. 3 relating to the non-possession of a valid University Degree Certificate as a surplusage in stating or averring the requirement as qualification and whether it is contrary to the claim and ought be determined at a High Court, would not derogate from the validity of a ground for an election petition based on the general allegation of disqualification or non qualification as already made in the petition so as to vest the Election tribunal with Jurisdiction solely. Ditto the reliefs bordering on the perjury and uttering are mere surplusages.
The 2nd and 3rd Respondents had filed their motion of 12th August 2011 by which they challenged the competence of the petition on the ground that prehearing Notice had not been applied for in accordance with the Rules and so also the 1st Respondent by motion of 5th September, 2011 contended the Tribunal lacked jurisdiction to entertain the petition as according to it, the petition related to a pre election matter-appertaining qualification and falsity of information contained in Form CF001 and EC40 which complaints ought to have been determined at a state or Federal High Court by virtue of section 31 (5) (6) the Electoral Act.
The Appellants and the Respondents each filed their briefs of argument which they adopted at the hearing of the appeal.
The Appellants formulated 5 issues for determination while the Respondent formulated issues too.
Having studied the record of appeal and in particular the Amended petition and Reply thereto, the Judgment of the Tribunal and the motion of the Appellants as petitioners for further particulars, its affidavit in support and argument in respect of jurisdiction and Response by the Respondent, I am of the humble view that issues 3.4 and 3.5 are the only relevant issues that are germane and apt for the determination of this appeal. Issue No. 1 of the Appellant which was also the issue No. 1 of the Respondent has now been settled as both sides, by their respective learned counsel had come to terms with their position that the petition was wrongly dismissed as it was done peremptorily on the ground of the initiation of the pre hearing session procedure. In other words whether the prehearing session was properly initiated in accordance with the First Schedule to the Electoral Act 2010 as amended has been conceded to by the Respondents, as they must. In any case in view of the recent decision of this court in CA/L/EPT/004 LABOUR PARTY v. OLUREMI TINUBU & 2 ORS. delivered on 1/12/11, GEBI V. ALHAJI GARBA DAHIRU in CA/J/EPT/HR/127/2011, SIMON ISA & ANR. V. ALHAJI SAAD TAHIR.
The Supreme Court has also recently in the cases of GABRIEL SUSWAN v. SAROR; PROF. STEVE TORKUM UGBA v. PDP SC. 360/2011 and 366/2011 UDOEDEHE v. GODWILL put the issue beyond dispute.
The issue is resolved in favour of the Appellant. That is to say that the pre hearing was properly initiated by the Petitioners/Appellants herein.
On the 2nd issue, whether the Appellant’s petition was a post or a pre election issue, I have looked at the petition as filed. The relevant portions indicating the grounds have been reproduced in this Judgment. Under section 66 (1) of the 1999 Constitution and section 138 (1) of the Electoral Act 2010, an election petition can be brought on the ground that the person elected at an election was at the time of the election disqualified or not qualified to have stood for the election. See ONWE AGBAKOGBA V. INEC, SENATOR UCHA V. DR. ONWO (2011) 1 – 2 SC pt. 193 at 100 and 100. It is clear that when the issue of disqualification is based on or arose from the domestic nomination exercise of his political party, it is clearly a pre election matter over which the Tribunal had no jurisdiction. In this case, the disqualifying grounds are cognizable by the Tribunal whether it is a disqualification under the Constitution. See OHAKIM V. AGBOFO and EJIOGU V. IROMA sc 387/2011 delivered on 28/11/11 PDP v. SAROR and SUSWAN V. SAROR.
The chances of proof on its merit, of the particulars of the grounds of disqualification or non qualification is entirely a different matter to be sorted out at the full trial before the Tribunal, since it is for he that asserts to prove; it is therefore not right to shut out a litigant who has disclosed a cause of action from the gates of the temple of Justice without giving him a hearing, this is an anachronism and a mockery of Justice. It is condemnable. I condemn it. The mode of couching of the Petitioners/Appellants ground of petition should not be the reason for a recourse to technicality leading to Justice being prostrate and technically elevated in the conduct of adjudication. See Abubakar & 2 ORS. v. NASAMU & 3 ORS SC 350/11 delivered on 9/11/12
By sheer recourse to unwarranted technicalities, the course of justice should not be allowed to be defeated. In the case of SYLVESTER OGBOMOR v. THE STATE (1985) 1 NSCC 224 at 239, the Supreme Court per Aniagulu, JSC emphasized the ultimate aim of the law at doing substantial justice as opposed to technical Justice when he said:-
”The dictates of justice which command that the guilty be punished and the innocent set free after a fair hearing under procedural regularity do not permit the acquittal of an otherwise guilty person upon fanciful errors contained in the charge. The law always aims at substantial justice.”?
In STATE v. SALIHU MOHAMMED GWENTO & ORS. (1983) NSCC 104 at 119, ESO JSC also state the principle thus:-
”It would amount to travesty of Justice to allow the judgment of the court of Appeal to stand. This court has for some time now laid down as a guiding principle that it is more interested in substance than mere form.
Justice can only be done if the substance of the matter is examined. Reliance on technicalities read
to injustice.”?
In BATURE V. STATE (1994) in NWLR 267 at 282 the SC per Onu JSC emphasized:
”Rather, what I mean is that mere technicalities (as opposed to substantial justice upon which the law looks with seriousness) as depicted in the instant case ought not to be allowed to defeat the ends of justice.”?
Tabai JSC in STATE V. SALAWU 2011 6 – 7 SC (part iv) 14 at 184 stated thus
”Regrettably, the court below did not feel bound by the above principle of doing substantial justice. Rather, it chose to adopt the path to technical justice and inflicted thereby the injustice complained of. As I already indicated above, there is merit in this appeal…”?
The Appellant’s counsel had also submitted that the words of the Constitution as provided in section 66(1) of the 1999 Constitution and section 138(1) of the electoral Act 2010, on disqualification constitutes a clear ground for election petition and should be interpreted liberally and not in such a way as to nullify or stultify its intent and purpose or defeat its aim and objective. A.G. BENDEL STATE v. ATTORNEY GENERAL FEDERATION (1981) 9 SC reprint 1 at 78 – 79 referred.
I agree entirely with the learned counsel for the Appellants when he submitted that the legislative intent will be defeated were this court to hold that the mere reliance on disqualifying factors such as non possession of certificates or the, possession of forged certificates will necessarily turn complaint to a pre election matter, BS it will be contrary to the principle, of giving a sensible meaning to legislative words, and would lead to absurdity. The legislature does not intend absurdity – i.e. lex non cogit ad absurdum.
A decision based on a technical approach as done at the trial Tribunal is no doubt erroneous in law as it prevented the Appellant’s petition from being heard on its merit.
This court had so aptly stated the position of the law in its recent decision in LABOUR PARTY V. SOREMI TINUBU and 3 ORS. wherein it stated while quoting EMINERI V. INEC that an election petition is not only a sensitive matter, but it is so important to the public, that every aggrieved person should be allowed to vindicate his grievance in accordance to law, as an election is so fundamental to the democratic principle that even the electorate desire to know their true representatives, persons aggrieved should not be denied the right of access to the courts on mere flimsy excuse; for to do so will be a precursor to anarchy. The role of the juex is to do all that is possible to ensure that justice is done in all circumstances. In EGIOGU V. IROMA (2009) 4 NWLR (PT. 1132) 513 the election of a candidate who was disqualified from contesting was upturned by a petition at the Electoral Tribunal.
In OHAKIM V. AGBASO (2010) 6 – 7 SC 85 at 137/138 the SC per Onoghen JSC held that all that took place leading to an election and afterwards should be seen as a post election matter and cognizable before the relevant election petitions Tribunal so as to avoid the chaos and confusion of having parties jumping between the Tribunal and the regular courts as in the Sokoto State Gubernatorial petition matter.
The Appellant had also raised the issue whether or not it was not wrong of the trial Tribunal to have proceeded to consider the motion of the 1st Respondent which raised the issue of jurisdiction of the Tribunal after it had held that it had no jurisdiction as the petition itself was not competently instituted as required by the Electoral Act on account of the mode of the application for the commencement of the pre-hearing session.
Learned counsel had argued that to have proceeded as done was an exercise in futility and thus rendering all further or subsequent consideration as a nullity including the further consideration of the motion of the 1st Respondent upon which it ruled that the petition was a pre-election matter, That the exercise of consideration and the ruling arising there from was submitted to be an incompetent action as the court had become functus officio.
That is the law. See DINGYADI v. INEC No. 3 (2011) 4 SC (pt.1) at 45 DINGYADI V. INEC No. 2 (2010) 7 – 12 SC 105.
The issue of whether or not the petition related to a pre-election or post election issue is a substantive matter which could only be determined at the plenary session of the Tribunal at full trial by evidence led. I agree with the Appellant’s counsel when he so submitted at page 3 of his Brief of argument.
Even if it may be argued that the consideration of the motion of the 1st Respondent did not occasion a miscarriage of justice as it was to the same intent and purpose with the consideration of the first issue raised from the motion of the 2nd and 3rd Respondents’ objection that was considered as relating jurisdiction was indeed not competent.
That motion by the Respondent was, no doubt actuated by bad faith as the Appellant’s conduct and declaration had not been challenged expressly.
Was it to shove up the 2nd and 3rd Respondent’s contention, that the later objection was raised? I agree that the words of wisdom from the Supreme Court in A.G. FEDERATION V. ABUBAKAR (2007) SC pt II 62 is instructive as relating to INEC’s position as an impartial arbiter. It must be seen to be so. On the whole, I agree with the Appellant’s learned counsel when he submitted at pages 29 – 30 of his brief of argument that
1. The Appellants properly initiated the issuance of the prehearing session by the application dated 2nd June 2011 in pursuance of which the secretary to the Tribunal issued Forms TF 007 and TF008 on 2nd June 2011.
2. The Appellants petition was a post election dispute.
3. The technical approach adopted by the Tribunal led to the denial of fair hearing which occasioned a miscarriage of justice as the Tribunal proceeded to hear a subsequent application after it had become fuctus officio and even then considered the application which itself was not raised as appropriate in a reply pleadings and taken at the trial
The 1st and 2nd 3rd Respondents had in their respective briefs of argument sought the affirmation of the Judgment of the Tribunal.
I have thoroughly studied their briefs of argument as adopted and as modified on oral submissions but find no merit in them in the circumstances of this appeal.
It is for this reason and in particular the stand I had earlier taken in this Judgment that I agree entirely with the lead Judgment that this appeal is one blosoming in merit and must be allowed.
The robust arguments canvassed in favour of allowing the appeal satisfies the dictates of law, equity, justice and conscience in preference to the rather ingenius but technical arguments against same.
Appeal is allowed by me. In the circumstance, I set aside the decision of the trial Tribunal and order in its stead that the petition shall be restored to the cause list to be heard de novo or afresh by a different panel of the Tribunal to be constituted by the Hon. President of the Court of Appeal.
All the consequential orders and declarations as made by the trial Tribunal are consequently set aside and quashed.
I award no costs.
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